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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (date of earliest event reported): March 31, 1997
WESTINGHOUSE AIR BRAKE COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 1-13782 25-1615902
(State or other jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1001 AIR BRAKE AVENUE
WILMERDING, PENNSYLVANIA 15148
(Address of principal executive offices)
Registrant's telephone number, including area code: (412) 825-1000
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ITEM 5. OTHER
On March 31, 1997, Westinghouse Air Brake Company (the "Company"),
repurchased from Scandinavian Incentive Holdings, B.V., a corporation organized
under the laws of The Netherlands ("SIH"), 4,000,000 shares of the Company's
Common Stock, par value $.01 per share (the "Common Stock"), for a purchase
price of $11 per share in cash and an aggregate purchase price of $44 million
(such transaction being hereinafter referred to as the "Redemption"). The
Redemption was effected pursuant to a Redemption Agreement (the "Redemption
Agreement") dated as of March 5, 1997 among the Company, SIH and Incentive AB,
the sole shareholder of SIH ("Incentive"). Concurrently therewith, SIH sold its
remaining 6,000,000 shares of Common Stock to a group of investors consisting of
Vestar Equity Partners, L.P. ("Vestar"), Harvard Private Capital Holdings, Inc.
("Harvard"), American Industrial Partners Capital Fund II, L.P. ("AIP") and
certain members of management of the Company (the "Management Purchasers") for a
purchase price of $11 per share in cash, pursuant to a Stock Purchase Agreement
dated as of March 5, 1997, which sale was effective as of March 31, 1997 (such
transaction being hereinafter referred to as the "SIH Purchase").
In addition, the Company entered into a Common Stock Registration
Rights Agreement (the "Registration Rights Agreement") dated as of March 5,
1997 among the Company, Harvard, AIP, the RAC Voting Trust (the "Voting
Trust"), Vestar, Vestar Capital Partners, Inc. ("Vestar Capital") and Emilio A.
Fernandez, Jr. ("Mr. Fernandez") and Mr. Fernandez as custodian for Eric A.
Fernandez and Ofelia B. Fernandez (collectively, the "Pulse Shareholders"),
which Registration Rights Agreement provides for, among other things, the
registration of sales of shares of Common Stock under the Securities Act of
1933, as amended, by Holders (as defined in the Registration Rights Agreement)
at the expense, subject to certain specified exceptions, of the Company.
To finance the Redemption, the Company amended its credit agreement
with The Chase Manhattan Bank, as successor to Chemical Bank, The Chase
Manhattan Bank Delaware, as successor to Chemical Bank Delaware, The Bank of
New York and the other financial institutions named therein, to increase the
revolving credit availability by $15 million (from $125 million to $140
million) and to obtain a waiver of the requirement to make a prepayment in an
aggregate principal amount equal to 50% of excess cash flow for 1996, or
approximately $11.5 million. The Company borrowed $46 million to fund the
Redemption.
Also, the Company obtained consents from record owners as of March 3,
1997 (the "Note Holders") of its 9 3/8% Senior Notes Due 2005 (the "Notes") to
certain amendments to a covenant contained in the Indenture dated as of June
20, 1995 among the Company, as issuer, and The Bank of
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New York, as trustee, pursuant to which the Notes were issued (the
"Indenture"). The covenant in question limited the Company's ability to make
"Restricted Payments," including payments in connection with the purchase or
redemption of Common Stock.
Upon the Company's receipt of the requisite consents, the Indenture
was amended (i) to permit additional Restricted Payments in an amount of
approximately $22 million in order to complete the Redemption, and (ii) to
permit up to $2 million of additional Restricted Payments to be made in advance
of when they would otherwise have been permitted.
In addition, an Amended and Restated Stockholders Agreement dated as
of March 5, 1997 by and among the Voting Trust, Vestar, Harvard, AIP and the
Company, and joined for certain purposes by Vestar Capital, Mr. Kassling, Mr.
Fernandez, Ofelia B. Fernandez ("Mrs. Fernandez"), Mr. Brooks, Mr. Meister,
Davideco, Inc. ("Davideco") and Suebro, Inc. ("Suebro"), as amended by
Amendment No. 1 thereto dated as of March 28, 1997 (the "Stockholders
Agreement"), was executed in connection with the SIH Purchase. The Stockholders
Agreement contains provisions regarding, among other things, the disposition
and voting of shares of Common Stock by the parties to such agreement, as well
as certain provisions regarding the composition of the Board of Directors of
the Company.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) The exhibits identified below are filed herewith as a part of this
Report. The Company agrees to furnish to the Commission upon request a copy of
any omitted schedule (or other similar attachment) to the agreements identified
below.
Exhibit No. Description
----------- -----------
2.1 Redemption Agreement dated as of March 5, 1997 among the
Company, SIH and Incentive (Exhibits omitted)*
3.2 Amended and Restated Bylaws of the Company, effective as of
March 31, 1997**
4.3 Amended and Restated Stockholders Agreement dated as of
March 5, 1997 by and among the Voting Trust, Vestar,
Harvard, AIP and the Company, and joined for certain
purposes by Vestar Capital and Mr. Kassling,
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Mr. Fernandez, Mrs. Fernandez, Mr. Brooks, Mr. Meister,
Davideco and Suebro**
4.4 Amendment No. 1 to the Amended and Restated Stockholders
Agreement dated as of March 28, 1997 by and among the Voting
Trust, Vestar, Harvard, AIP and the Company, and joined for
certain purposes by Vestar Capital and Mr. Kassling, Mr.
Fernandez, Mrs. Fernandez, Mr. Brooks, Mr. Meister, Davideco
and Suebro**
4.5 First Supplemental Indenture dated as of March 21, 1997
among the Company, as issuer, and The Bank of New York, as
trustee*
10.6 Common Stock Registration Rights Agreement dated as of March
5, 1997 by and among the Company, Harvard, AIP, the Voting
Trust, Vestar, Vestar Capital and the Pulse Shareholders**
10.23 First Amendment and Waiver Agreement dated as of February
28, 1997 among the Company, certain of the Company's
subsidiaries and the Company's principal lenders relating to
the Credit Agreement dated as of January 31, 1995, amended
and restated as of February 15, 1995, amended and restated
as of June 9, 1995 and amended and restated as of September
19, 1996 (Schedules omitted)*
* Filed herewith.
** Filed as an exhibit to the Schedule 13D filed jointly on March 31, 1997 by
Mr. Kassling, Mr. Fernandez, Mrs. Fernandez , Mr. Brooks, Mr. Meister, the
Voting Trust, Davideco and Suebro.
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WESTINGHOUSE AIR BRAKE COMPANY
Dated: April 9, 1997 By /s/ ROBERT J. BROOKS
------------------------------------------
Robert J. Brooks
Vice President and Chief Financial Officer
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INDEX TO EXHIBITS
EXHIBIT SEQUENTIAL
NUMBER PAGE NUMBER
------ -----------
2.1 Redemption Agreement dated as of March 5, 1997 among Westinghouse Air
Brake Company (the "Company"), Scandinavian Incentive Holdings, B.V.
("SIH") and Incentive AB (Exhibits omitted) ---
3.2 Amended and Restated Bylaws of the Company, effective as of March 31, 1997 **
4.3 Amended and Restated Stockholders Agreement dated as of March 5, 1997 by
and among the RAC Voting Trust (the "Voting Trust"), Vestar Equity Partners, L.P.
("Vestar"), Harvard Private Capital Holdings, Inc.. ("Harvard"), American Industrial
Partners Capital Fund II, L.P. ("AIP") and the Company, and joined for certain purposes
by Vestar Capital Partners, Inc. ("Vestar Capital") and William E. Kassling
("Mr. Kassling"), Emilio A. Fernandez ("Mr. Fernandez"), Ofelia B. Fernandez
("Mrs. Fernandez"), Robert J. Brooks ("Mr. Brooks"), John M. Meister
("Mr. Meister"), Davideco, Inc. ("Davideco") and Suebro, Inc. ("Suebro") **
4.4 Amendment No. 1 to the Amended and Restated Stockholders Agreement
dated as of March 28, 1997 by and among the Voting Trust, Vestar, Harvard,
AIP and the Company, and joined for certain purposes by Vestar Capital,
Mr. Kassling, Mr. Fernandez, Mrs. Fernandez, Mr. Brooks, Mr. Meister,
Davideco and Suebro **
4.5 First Supplemental Indenture dated as of March 21, 1997 among the Company,
as issuer, and The Bank of New York, as trustee
10.6 Common Stock Registration Rights Agreement dated as of March 5, 1997
by and among the Company, Harvard, AIP, the Voting Trust, Vestar, Vestar
Capital, Mr. Fernandez and Mr. Fernandez as custodian for Eric A. Fernandez
and Mrs. Fernandez **
10.23 First Amendment and Waiver Agreement dated as of February 28, 1997 among
the Company, certain of the Company's subsidiaries and the Company's principal
lenders relating to the Credit Agreement dated as of January 31, 1995, amended
and restated as of February 15, 1995, amended and restated as of June 9, 1995
and amended and restated as of September 19, 1996 (Schedules omitted) ---
** Filed as an exhibit to the Schedule 13D filed jointly on March 31, 1997 by
Mr. Kassling, Mr. Fernandez, Mrs. Fernandez, Mr. Brooks, Mr. Meister, the
Voting Trust, Davideco, and Suebro.
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EXHIBIT 2.1
REDEMPTION AGREEMENT
REDEMPTION AGREEMENT (this "Agreement"), dated as of March 5,
1997, among Westinghouse Air Brake Company, a Delaware corporation (the
"Company"), Scandinavian Incentive Holdings, B.V., a corporation organized
under the laws of the Netherlands ("SIH"), and Incentive AB ("Incentive"), a
corporation organized under the laws of the Kingdom of Sweden and the sole
stockholder of SIH.
W I T N E S S E T H
WHEREAS, SIH is the owner, beneficially and of record, of
10,000,000 shares of common stock, par value $0.01 per share, of the Company
(the "Common Stock"); and
WHEREAS, the Company desires to redeem 4,000,000 shares of
Common Stock (the "Shares") from SIH substantially simultaneously with the
purchase by Vestar Equity Partners, L.P., a Delaware limited partnership
("Vestar"), Harvard Private Capital Holdings, Inc., a Massachusetts corporation
("Harvard"), American Industrial Partners Capital Fund II, L.P., a Delaware
limited partnership ("AIP"), and certain members of the Company's management
(the "Management Purchasers" and, together with Vestar, Harvard and AIP, the
"Buyer"), collectively, of the remaining 6,000,000 shares pursuant to the SIH
Purchase (as defined below), and SIH is willing to sell the Shares to the
Company upon the terms and subject to the conditions stated herein (the
"Redemption");
WHEREAS, substantially simultaneously with, and as a
condition to, the consummation of the Redemption, Buyer will purchase (at a
price equal to the Redemption Price paid by the Company for each share redeemed
by the Company in the Redemption) from SIH 6,000,000 shares of Common Stock
(the "SIH Purchase") pursuant to the SIH Purchase Agreement, dated as of the
date hereof, among SIH, Incentive, Vestar, Harvard AIP and the Management
Purchasers (the "SIH Purchase Agreement"), a copy of which is attached as
Exhibit A hereto;
WHEREAS, the respective Board of Directors of each of the
Company, SIH and Incentive have approved the Transaction (as defined herein)
and the execution, delivery and performance of the Transaction Documents (as
defined herein) to which it is a party;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, SIH, Incentive and the Company hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. As used in this Agreement, terms
defined in the preamble and recitals to this Agreement shall have the meanings
given to them therein and the following capitalized terms shall have the
following respective meanings:
"Acquisition Proposal" shall have the meaning specified in
Section 6.1.
"Business Day" shall mean any day other than a Saturday or
Sunday or a day on which banking institutions in Boston,
Massachusetts, New York, New York,
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Pittsburgh, Pennsylvania or Stockholm, Sweden are authorized or
required by law or executive order to remain closed.
"Closing" shall have the meaning specified in Section 3.1.
"Closing Date" shall have the meaning specified in Section
3.1.
"Existing Stockholders Agreement" shall mean the Stockholders
Agreement, dated as of January 31, 1995, by and among SIH, the Voting
Trust and the Company, and joined for certain limited purposes by
Vestar/Company Investors, L.P., Vestar Capital Partners, Inc., William
E. Kassling, Emilio A. Fernandez and Incentive.
"Redemption Price" shall have the meaning specified in
Section 2.1.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Transaction" shall mean the collective reference to the SIH
Purchase and the Redemption.
"Voting Trust" shall mean the Voting Trust created pursuant
to the Voting Trust Agreement.
"Voting Trust Agreement" shall mean the Second Amended WABCO
Voting Trust/Disposition Agreement, dated as of December 13, 1995, by
and among the trustholders and the trustees parties thereto.
ARTICLE II
REDEMPTION AND SALE
SECTION 2.1. Redemption of Common Stock. On the terms and
subject to the conditions set forth in this Agreement, on the Closing Date (as
hereinafter defined), the Company agrees to redeem from SIH and SIH agrees to
sell to the Company the Shares. In consideration for the sale by SIH of the
Shares, SIH will be paid $44,000,000 (the "Redemption Price"), a Redemption
Price of $11.00 per Share.
ARTICLE III
THE CLOSING
SECTION 3.1. Closing; Deliveries. (a) Unless this Agreement
shall have been terminated and the transactions herein contemplated shall have
been abandoned pursuant to Section 8.1 hereof, the closing of the Redemption
(the "Closing") shall take place at the offices of Simpson Thacher & Bartlett,
425 Lexington Avenue, New York, New York, at 10:00 a.m., New York City time, on
March 31, 1997 or as soon as practicable following the satisfaction (or, where
permissible, due waiver by the parties entitled to the benefits thereof) of the
conditions set forth in Article 7 hereof, or on such other date and at such
other time and place as may be mutually agreed upon by the parties hereto. The
date on and time at which the Closing actually occurs being hereinafter
referred to as the "Closing Date."
(b) At the Closing, on the terms and subject to the
conditions of this Agreement, (i) the Company shall wire transfer to the bank
account specified in writing by SIH not later than two Business Days prior to
the Closing Date immediately available funds in the amount of the Redemption
Price, against delivery by SIH of certificates representing the Shares, and
(ii) SIH
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shall deliver to the Company, against delivery by the Company of the Redemption
Price, stock certificates representing the Shares, duly endorsed for transfer
to the Company by SIH or accompanied by stock powers duly executed in favor of
the Company, and, in either case, accompanied by such other documents as may be
necessary to transfer record ownership of the Shares on the stock transfer
books of the Company, together with evidence of payment of any applicable
transfer and documentary stamp taxes and other fees.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.1. Representations of the Company. The Company
represents and warrants to SIH and Incentive that:
(a) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
and the Company has the corporate power and authority to own and
operate its properties and conduct its business as it is presently
conducted;
(b) the Company has all requisite corporate power and
authority to execute and deliver this Agreement, and any other
document necessary to consummate the Redemption;
(c) the execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by its Board of Directors
and no other corporate action on the part of the Company is required
therefor;
(d) this Agreement has been duly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing;
(e) neither the execution, delivery and performance of this
Agreement by the Company nor the consummation by the Company of the
transactions contemplated hereby to be consummated by it will: (i)
violate the certificate of incorporation or by-laws of the Company;
(ii) violate any law, rule, regulation, order, judgment, injunction,
ruling or decree of any court or governmental authority applicable to
it or any of its assets; or (iii) with or without notice or lapse of
time or both, require any consent, approval or notice under,
constitute a violation of or default under, conflict with, give rise
to any right of termination, cancellation or acceleration under, or
result in the creation of any lien, security interest, encumbrance or
other charge upon any of its assets under, any contract, agreement,
note, mortgage, license, permit or instrument by which it is bound or
to which its assets are subject;
(f) no consent, approval, order or authorization of, or
exemption by, or filing or registration with, or notice to, any
governmental or regulatory authority is required to be obtained or
made by the Company in connection with the execution, delivery and
performance by the Company of this Agreement or the consummation by
the Company of the transactions contemplated hereby to be consummated
by it, other than the consents of the Company's principal lenders and
holders of the Company's Senior Notes referenced in Section 7.2 (f)
and (g), respectively, and filings with the SEC required to be made by
it after the Closing;
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(g) there is no litigation or proceeding pending, or to the
actual knowledge of the executive officers of the Company, threatened
or any investigation pending or threatened against the Company which
would prohibit the Company from consummating, or otherwise impair its
ability to consummate, the Transaction; and
(h) the Company has financing available to complete the
Redemption.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SIH AND INCENTIVE
SECTION 5.1. Representations of SIH and Incentive. SIH and
Incentive, jointly and severally, represent and warrant to the Company that:
(a) each of SIH and Incentive is duly organized
and validly existing under its jurisdiction of incorporation;
(b) each of SIH and Incentive has all requisite corporate
power and authority to execute and deliver this Agreement and the SIH
Purchase Agreement and to consummate the transactions contemplated
hereby and thereby to be consummated by it;
(c) the execution and delivery of this Agreement and the SIH
Purchase Agreement by each of SIH and Incentive and the consummation
by each of SIH and Incentive of the transactions contemplated hereby
and thereby to be consummated by each of them have been duly and
validly authorized and approved by all necessary corporate or other
action required on the part of each of SIH and Incentive;
(d) this Agreement has been duly executed and delivered by
each of SIH and Incentive;
(e) when executed and delivered by SIH and Incentive, this
Agreement and the SIH Purchase Agreement each will constitute a legal,
valid and binding obligation, enforceable against each of SIH and
Incentive in accordance with their respective terms subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(f) neither SIH nor Incentive has employed any broker, finder
or agent nor agreed to pay to any person any broker's fee, finder's
fee, commission or other similar form of compensation in connection
with this Agreement or the transactions contemplated hereby;
(g) there is no litigation or proceeding pending or, to the
actual knowledge of the executive officers of SIH or Incentive,
threatened or any investigation pending or threatened against SIH or
Incentive which would prohibit either SIH or Incentive from
consummating, or otherwise impair the ability of either SIH or
Incentive to consummate, any of the transactions contemplated hereby;
(h) on the date hereof SIH does, and on the Closing Date SIH
will, own the Shares of record and beneficially and the Shares are
fully paid and nonassessable;
(i) on the date hereof, SIH has, and on the Closing Date SIH
will have, good, valid and marketable title to the Shares free and
clear of all claims, liens, encumbrances,
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restrictions (including without limitation restrictions on the power
to vote or dispose of the Shares), security interests and charges of
any nature whatsoever, including without limitation any preemptive
right or right of first refusal or first offer of any party (except
for those restrictions set forth in the Existing Stockholders
Agreement) or any agreement, arrangement or understanding regarding
the sale or transfer of the Shares (other than this Agreement, the SIH
Purchase Agreement and the Existing Stockholders Agreement);
(j) on the Closing Date, upon delivery to the Company of the
Shares by SIH in exchange for the Redemption Price, the Company will
receive good, valid and marketable title to the Shares, free and clear
of all claims, liens, encumbrances, restrictions, security interests
and charges of any nature whatsoever;
(k) neither the execution, delivery and performance by SIH
and Incentive of this Agreement and the SIH Purchase Agreement nor the
consummation by each of them of the transactions contemplated hereby
or thereby will: (i) violate any organizational document of SIH or
Incentive; (ii) violate any law, rule or regulation, order, judgment,
injunction, ruling or decree of any court or governmental authority
applicable to SIH or Incentive or any of their respective assets; or
(iii) with or without notice or lapse of time or both, require any
consent, approval or notice under, constitute a violation of or
default under, conflict with, give rise to any right of termination,
cancellation or acceleration under, or result in the creation of any
lien, security interest, encumbrance or other charge upon any of the
assets of SIH or Incentive under, any contract, agreement, note,
mortgage, license, permit or instrument by which either SIH or
Incentive is bound or to which either of their respective assets is
subject, except for the waiver by the Company of its right of first
refusal under the Existing Stockholders Agreement; and
(l) no consent, approval, order or authorization of, or
exemption by, or filing or registration with, or notice to, any
governmental or regulatory authority is required to be obtained or
made by SIH or Incentive in connection with the execution, delivery
and performance by each of SIH and Incentive of this Agreement and the
SIH Purchase Agreement or the consummation by them of the transactions
contemplated hereby and thereby (other than any filings with the SEC
required to be made by Incentive or SIH after the Closing).
(m) as of the date hereof, Incentive is not aware of any
discussions regarding any Acquisition Proposal after October 30, 1996.
ARTICLE VI
COVENANTS
SECTION 6.1. Covenants of the Parties.
(a) Further Assurances and Cooperation. Subject to the terms
and conditions hereof, (i) each of the parties hereto agrees to use
its reasonable best efforts to effect the Closing of the Redemption by
March 31, 1997 and (ii) each of the parties hereto agrees to use its
reasonable best efforts to insure that the conditions set forth in
Article VII are satisfied, insofar as such matters are within the
control of such party.
(b) Public Announcements. Each of the parties hereto will
consult with each other before issuing any press release or otherwise
making any public statements with respect to the Transaction and other
matters contemplated hereby and will not issue any such press release
or make any other public statement prior to such consultation, and,
except to the
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extent that outside counsel advises that applicable law requires
otherwise, any such press release or public statement will be approved
in advance by each of the parties hereto.
(c) Other Acquisition Proposals. (i) Incentive and SIH will
not, directly or indirectly, through any officer, director,
representative, affiliate or agent (A) solicit, initiate, encourage or
assist in the submission of any inquiries, proposals or offers from
any corporation, partnership, person or other entity or group relating
to any acquisition or purchase of assets of the Company, or any equity
interest in, the Company (including any Shares), or any other form of
recapitalization transaction involving the Company, or any merger,
consolidation, business combination, spin-off, liquidation or similar
transaction involving the Company other than the Transaction (each an
"Acquisition Proposal"), (B) participate in any discussions or
negotiations regarding an Acquisition Proposal or furnish to any
person or entity (other than Buyer or the Company) any information
concerning the Company or the proposed Transaction, (C) otherwise
cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any other person (other than Buyer
or the Company) to make or enter into an Acquisition Proposal or (D)
sell, assign, convey or transfer the Shares or any interest therein or
grant any right to acquire any of the foregoing or agree or propose to
do any of the foregoing.
(ii) If either Incentive or SIH receives any
inquiry, proposal or offer to enter into any transaction of the type
referred to in Section 6.1(c)(i) (A), (B), (C) or (D) above, such
party will inform the Company of the terms thereof, except to the
extent prohibited by applicable law, rule or regulation of any
governmental authority or stock exchange by which Incentive or SIH is
bound.
(iii) Except to the extent that outside counsel
advises that applicable law requires otherwise, neither Incentive, SIH
nor any of their respective officers, directors, representatives,
affiliates or agents will disclose to any person, without the prior
written consent of the Company, the fact that Incentive and SIH have
entered into this Agreement and are engaged in the Transaction.
(d) Expenses. Each of the parties hereto will pay its own
expenses incurred or to be incurred in connection with the
Transaction.
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.1. Conditions Precedent to Each Party's Obligation
to Effect the Closing. The obligation of each party hereto to consummate the
Closing hereunder shall be subject to the satisfaction (or, where permissible,
waiver by the party or parties, as the case may be, entitled to the benefits
thereof) on the Closing Date of each of the following conditions:
(a) no preliminary or permanent injunction or other order
issued by any United States federal or state court or any court in the
Kingdom of Sweden of competent jurisdiction or by any United States
federal or state governmental or regulatory body or any governmental
or regulatory body of the Kingdom of Sweden nor any statute, rule,
regulation or order of any United States federal or state governmental
authority or governmental authority of the Kingdom of Sweden shall be
in effect which (i) restrains, enjoins or otherwise prohibits the
Company, SIH or Incentive from consummating the Transaction or (ii)
impose any material limitations on the Company's ability to exercise
full rights of ownership of the Shares; and
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(b) substantially simultaneously with the Closing, the SIH
Purchase shall be consummated in accordance with the SIH Purchase
Agreement.
SECTION 7.2. Conditions Precedent to the Obligation of the
Company. The obligation of the Company to effect the Closing shall be subject
to the satisfaction (or, where permissible, waiver by the Company) on the
Closing Date of each of the following conditions:
(a) each of SIH and Incentive shall have performed and
complied in all material respects with each of its agreements and
covenants contained herein to be performed or complied with by SIH or
Incentive, as the case may be, on or prior to the Closing Date;
(b) each of the representations and warranties of SIH and
Incentive contained herein shall be true in all material respects on
and as of the Closing Date with the same effect as though made on and
as of the Closing Date (except to the extent such representations and
warranties speak as of an earlier date);
(c) the Company shall have received a certificate to the
effect that the conditions set forth in the foregoing clauses (a) and
(b) have been satisfied, signed by the Chief Executive Officer,
President, Chief Financial Officer or any Vice President of SIH and
Incentive;
(d) there shall not have occurred any event that could
reasonably be expected to have a material adverse effect on the
business, assets, properties, operations (financial or otherwise) or
prospects of the Company and its subsidiaries taken as a whole;
(e) there shall not have occurred any material disruption or
any other event that could reasonably be expected to have a material
adverse effect on the financial, banking or capital markets in the
United States;
(f) prior to or concurrently with the Closing the First
Amendment and Waiver Agreement dated as of February 28, 1997 among the
Company, certain of the Company's subsidiaries and the Company's
principal lenders relating to the Credit Agreement, dated as of
January 31, 1995, amended and restated as of February 15, 1995,
amended and restated as of June 9, 1995, and amended and restated as
of September 19, 1996, shall have been executed and delivered by the
parties thereto and shall be effective in the form of Exhibit B
hereto;
(g) prior to or concurrently with the Closing the requisite
majority of the holders of the Company's 9 3/8% Senior Notes Due 2005
shall have consented to the amendments in the form of Exhibit C hereto
proposed by the Company to the Indenture dated as of June 20, 1995
pursuant to which such Senior Notes were issued so as to permit the
Redemption; and
(h) Vestar, Harvard and AIP shall have executed and delivered
the Amended and Restated Stockholders Agreement in the form of Exhibit
D hereto and Vestar, Harvard and AIP shall have executed and delivered
the Registration Rights Agreement in the form of Exhibit E hereto.
SECTION 7.3. Conditions Precedent to the Obligations of SIH
and Incentive. The obligations of each of SIH and Incentive to effect the
Closing shall be subject to the satisfaction (or, where permissible, waiver by
SIH and Incentive) on the Closing Date of all of the following conditions:
8
(a) the Company shall have performed and complied in all
material respects with each of its agreements and covenants contained
herein to be performed or complied with by the Company on or prior to
the Closing Date;
(b) each of the representations and warranties of the Company
contained herein shall be true in all material respects on and as of
the Closing Date with the same effect as though made on and as of the
Closing Date (except to the extent such representations and warranties
speak as of an earlier date);
(c) SIH and Incentive shall have received a certificate to
the effect that the conditions set forth in the foregoing clauses (a)
and (b) have been satisfied, signed by the Chief Executive Officer,
President, Chief Financial Officer or any Vice President of the
Company; and
(d) SIH and Incentive shall have received a letter from the
Company substantially in the form of Exhibit F hereto.
ARTICLE VIII
TERMINATION; SUCCESSORS AND ASSIGNS
SECTION 8.1. Termination. (a) This Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any
time prior to the Closing:
(i) by the mutual written consent of the Company, SIH and
Incentive; or
(ii) by either of the Company, SIH or Incentive in writing,
if the Closing shall not have occurred on or before March 31,
1997, provided that the right to terminate this Agreement
pursuant to this Section 8.1(a)(ii) shall not be available to
any party whose failure to fulfill any of its obligations
under this Agreement, or whose breach of any representation
or warranty by it set forth herein, has been the cause of, or
resulted in, the failure of the Closing to have occurred on
or before such date.
(b) In the event of the termination of this Agreement
pursuant to Section 8.1(a) hereof, written notice thereof shall forthwith be
given to the other parties hereto and this Agreement shall be of no further
force and effect, except that the provisions of this Article VIII and Sections
6.1(b) and (d) and Article IX hereof shall remain in full force and effect. The
foregoing provisions shall not limit or restrict the availability of specific
performance or other injunctive relief to the extent that specific performance
or other injunctive relief would be otherwise available to a party hereunder.
Nothing in this Section 8.1 shall be deemed to relieve any party from any
liability for any breach by such party of its representations, warranties,
covenants or agreements set forth in this Agreement.
SECTION 8.2. Amendments and Waivers. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto. Incentive and SIH, on the one hand, and the Company, on the
other hand, may, by an instrument in writing signed on behalf of such party,
waive compliance by the other party with any term or provision of this
Agreement that such other party was or is obligated to comply with or perform.
In particular, it is acknowledged and agreed that the Company may not waive the
condition set forth in Section 7.1(b) as conditions to the obligations of SIH
and Incentive to effect the Closing.
9
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Conciliation and Arbitration. (a) If any
dispute, claim or difference arises out of or relating to this Agreement (a
"Dispute"), the parties hereto shall use their reasonable best efforts to
resolve the Dispute and, if they so desire, may consult outside experts for
assistance in arriving at such a resolution.
(b) Any Dispute shall be finally settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA") effective as of the commencement of the arbitration (the
"Rules"), except as such Rules may be modified as provided herein. The
arbitration shall be held in New York, New York, unless the parties mutually
agree to have the arbitration held elsewhere, and judgment upon the award made
therein may be entered by any court having jurisdiction thereof provided,
however, that nothing contained in this Section 9.1 shall be construed to
preclude a party from bringing any action in any court of competent
jurisdiction for injunctive or other provisional relief to compel another party
to comply with its obligations under this Agreement during the pendency of the
arbitration proceedings. The arbitral tribunal shall be composed of three
arbitrators, whose names shall be set forth on a list of arbitrators approved
by the AAA and who shall be experienced litigators admitted to practice law in
the State of New York. The Company shall appoint one arbitrator and SIH and
Incentive shall together appoint one arbitrator; provided that to the extent
any Dispute relates only to SIH, SIH shall appoint such arbitrator. A third
arbitrator shall be nominated in accordance with Rule 14 of the Rules. The two
arbitrators thus appointed shall attempt to agree upon the third arbitrator to
act as chairperson of the arbitration tribunal. If said two arbitrators fail to
appoint the chairperson within thirty days from the date of appointment of the
second arbitrator, upon written request of either party to the AAA, such
appointment shall be made in accordance with Rule 13 of the Rules. The
arbitrators shall have no power to waive, alter, amend, revoke or suspend any
of the provisions of this Agreement; provided, however, that the arbitrators
shall have the power to decide all questions with respect to the interpretation
and validity of this Section 9.1. The arbitration shall be conducted, and the
award shall be rendered, in the English language. An arbitrator may not act as
an advocate for the party nominating him, and all three arbitrators shall be
impartial and unbiased. A majority vote by the three arbitrators shall be
required on any decision made by them; provided, however, that lacking such a
majority in the case of questions of amounts of dollar or other quantities the
vote for the greatest amount or quantity shall be deemed to be a vote for the
amount or quantity next in magnitude in order to form a majority for such vote.
The arbitrators shall permit such discovery as they shall determine is
appropriate in the circumstances taking into account the needs of the parties
and the desirability of making discovery expeditious and cost effective. Any
such discovery shall be limited to information directly relevant to the
controversy or claim in arbitration and shall be concluded within thirty days
after the appointment of the arbitration panel. This agreement to arbitrate
shall be binding upon the successors and assigns of any party hereto. Except to
the extent required by law or court or administrative order, no party,
arbitrator, representative, counsel or witness shall disclose or confirm to any
person not present at the arbitration hearings any information about the
arbitration proceeding or hearings, including the names of the parties and
arbitrators, the nature and amount of the claims, the financial condition of
any party the expected date of hearing or the award made.
(c) Subject to and not in any way limiting the preceding
subparagraph, each of the parties hereto irrevocably consents and submits to
the jurisdiction in any action brought in connection with this Agreement in the
United States District Court for the Southern District of New York or any court
of competent jurisdiction in New York, New York, including, but not limited to,
any action to enforce an award rendered pursuant to the preceding subparagraph.
SIH and Incentive hereby appoint CT Corporation System as their agent for
service of process in
10
New York and the Company hereby appoints Reed Smith Shaw & McClay, 375 Park
Avenue, New York, New York 10152, Attention: Ruth S. Perfido, Esq., as its
agent for service of process in New York. The submission of the parties to
jurisdiction as set forth in this Section 9.1(c) does not constitute and shall
not be deemed a consent to jurisdiction for any purpose other than those
expressly set forth in this Agreement.
SECTION 9.2. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to the conflicts of law principles thereof.
SECTION 9.3. Notices. Any notice, request, demand, waiver or
other communication required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered by hand,
(b) five Business Days after it is mailed, certified or registered mail, return
receipt requested with postage prepaid, (c) when answered back if sent by
telecopy (with receipt confirmed) or (d) three Business Days after it is sent
by express delivery service, as follows:
(a) if to the Company, to:
Westinghouse Air Brake Company
1001 Air Brake Avenue
Wilmerding, Pennsylvania 15148
Attention: Robert Brooks
Telephone No.: (412) 825-1315
Telecopier No.: (412) 825-1156
with a copy to:
Reed Smith Shaw & McClay
435 Sixth Avenue
Pittsburgh, Pennsylvania 15219
Attention: David L. DeNinno
Telephone No.: (412) 288-3214
Telecopier No.: (412) 288-3063
(b) if to SIH, to:
Scandinavian Incentive Holdings, B.V.
c/o Incentive AB
Hamngatan 2
S-11147 Stockholm, Sweden
Attention: Mr. Mikael Lilius
Telephone No.: (011) 46-8-613-65-17
Telecopier No.: (011) 46-8-611-81-61
with a copy to:
Adokatfirman Vinge KB
Smalandsgatan 20, Box 1703
S-111 87 Stockholm, Sweden
Attention: Hans Wibom, Esq.
Telephone No.: (011) 46-8-614-31-45
Telecopier No.: (011) 46-8-614-31-90
(c) if to Incentive, to:
11
Incentive AB
Hamngatan 2
S-111 47 Stockholm, Sweden
Attention: Mr. Mikael Lilius
Telephone No: (011) 46-8 613-65-17
Telecopier No: (011) 46-8-611-81-61
with a copy to:
Adokatfirman Vinge KB
Smalandsgatan 20, Box 1703
S-111 87 Stockholm, Sweden
Attention: Hans Wibom, Esq.
Telephone No.: (011) 46-8-614-31-45
Telecopier No.: (011) 46-8-614-31-90
SECTION 9.4. Entire Agreement. This Agreement, the
Transaction Documents and the other Exhibits hereto constitute the entire
agreement among the parties hereto and supersede any prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
SECTION 9.5. Successors and Assigns. This Agreement shall not
be assignable by SIH or Incentive without the prior written consent of the
Company or by the Company without the prior written consent of SIH and
Incentive. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Nothing
in this Agreement, express or implied, is intended to confer on any person
other than the parties hereto or their respective successors and permitted
assigns, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
SECTION 9.6. Interpretation. The section headings contained
in this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, the term
"affiliate" shall have the meaning set forth in Rule 12b-2 of the General Rules
and Regulations promulgated under the Securities Exchange Act of 1934, as
amended.
SECTION 9.8. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
SECTION 9.9. Non-Survival of Representations and Warranties.
None of the representations and warranties contained in this Agreement shall
survive the Closing, except for the representations and warranties made by each
of SIH and Incentive in Sections 5.1 (h), (i) and (j).
SECTION 9.10. Severability. The provisions of the Agreement
shall be deemed severable and the invalidity or unenforceability of any
provision shall not effect the validity or enforceability of the other
provisions hereof.
SECTION 9.11. Existing Stockholders Agreement. The Company
hereby acknowledges and agrees that all obligations owed by SIH and its
affiliates to the Company under the Existing Stockholders Agreement (other than
under Section 10 thereof) are terminated effective as of the Closing. SIH
hereby acknowledges and agrees that all rights and benefits accruing to SIH and
its affiliates under the Existing Stockholders Agreement are terminated
effective as of the Closing.
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SECTION 9.12. Registration Rights Agreement. SIH hereby
acknowledges and agrees that all rights and benefits accruing to it under that
certain Common Stock Registration Rights Agreement, dated as of January 31,
1995, with the Company are terminated effective as of the Closing.
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IN WITNESS HEREOF, the undersigned have executed this
agreement as of the date first above written.
WESTINGHOUSE AIR BRAKE COMPANY
By: ________________________________
Title: _____________________________
SCANDINAVIAN INCENTIVE HOLDINGS, B.V.
By: ________________________________
Title: _____________________________
INCENTIVE AB
By: ________________________________
Title: _____________________________
1
Exhibit 4.5
----------------------------------------
WESTINGHOUSE AIR BRAKE COMPANY
Issuer
AND
THE BANK OF NEW YORK
Trustee
----------------------------
FIRST SUPPLEMENTAL INDENTURE
----------------------------
Dated as of March 21, 1997
$100,000,000
9 3/8% Senior Notes Due 2005
----------------------------------------
2
FIRST SUPPLEMENTAL INDENTURE (hereinafter, the "First
Supplemental Indenture"), dated as of March 21, 1997, between Westinghouse Air
Brake Company, a Delaware corporation, as Issuer (the "Company") and The Bank
of New York, a New York banking corporation, as Trustee (the "Trustee").
A. The Company has executed and delivered to the Trustee an Indenture
dated as of June 20, 1995 (the "Indenture"), providing for the issuance of
$100,000,000 principal amount of the Company's 9 3/8% Senior Notes due 2005
(the "Senior Notes").
B. The Company desires to amend the Indenture in accordance with
Article 9 thereof as follows, which amendments have been authorized by a
majority of the holders of the outstanding Senior Notes in accordance with
Section 9.2 of the Indenture.
C. The Company has executed and delivered to the Trustee (i)
resolutions by the board of directors of the Company authorizing the execution
of the First Supplemental Indenture and (ii) evidence of receipt by the Company
of the requisite consents of the Senior Note holders pursuant to Section 9.2 of
the Indenture.
D. The Company has executed and delivered to the Trustee (i) an
officers' certificate and (ii) an opinion from the Company's counsel as
conclusive evidence that the First Supplemental Indenture is permitted by the
Indenture, not inconsistent with the Indenture and valid and binding upon the
Company in accordance with its terms pursuant to Section 9.6 if the Indenture.
---------------------------
In consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company and the
Trustee hereby amend the Indenture as follows:
1. Section 4.11(b) is hereby amended by deleting the word "and" at the
end of clause (vi) thereto, deleting "." at the end of clause (vii) thereto,
inserting ";" at the end of clause (vii) thereto, and adding the following new
clauses (viii) and (ix):
(viii) the redemption of up to 4,000,000 shares of Common
Stock from Scandinavian Incentive Holdings, B.V. on or prior
to April 30, 1997 at an aggregate price that, together with
Restricted Payments otherwise permitted under Section
4.11(a), would not exceed $44,000,000; provided, however,
that Restricted Payments made pursuant to this clause (viii)
shall be included in the calculation of Restricted Payments
for all purposes under Section 4.11(a)(3); and
(ix) up to an aggregate amount of $2,000,000 of additional
Restricted Payments from and after the effective date of the
First Supplemental
3
Indenture to this Indenture until such time as the Company
has the authority under Section 4.11(a) to make such
Restricted Payments; provided, however, that Restricted
Payments made pursuant to this clause (viii) shall be
included in the calculation of Restricted Payments for all
purposes under Section 4.11(a)(3).
2. For all purposes of this First Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires,
the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture.
3. Except as hereby expressly amended, the Indenture and the Senior
Notes issued thereunder are in all respects ratified and confirmed and all
terms, conditions and provisions thereof shall remain in full force and effect.
4. This First Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Senior Notes theretofore or
hereafter authenticated and delivered shall be bound hereby.
5. This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and all of which when taken together shall constitute one and the same
instrument.
6. This First Supplemental Indenture shall be governed by the laws of
the State of New York, without regard to conflicts of law principles thereof.
7. This First Supplemental Indenture shall become effective upon
execution by the Company and the Trustee in accordance with the terms of the
Indenture; however, the amendments to the Indenture set forth in this First
Supplemental Indenture shall not become operative until the Company has
deposited with the Trustee sufficient immediately available funds to make
payments equal to $15.00 for each $1,000 principal amount of Senior Notes held
by Holders who have delivered to the Trustee prior to 12:00 p.m., New York City
time, on March 19, 1997 valid and unrevoked consents in form and substance
satisfactory to the Company and the Trustee.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed as of the date and year first written above.
ISSUER
WESTINGHOUSE AIR BRAKE COMPANY
By:
--------------------------
Title:
-----------------------
TRUSTEE
THE BANK OF NEW YORK
By:
--------------------------
Title:
-----------------------
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EXHIBIT 10.23
FIRST AMENDMENT AND WAIVER AGREEMENT dated
as of February 28, 1997, among WESTINGHOUSE AIR
BRAKE COMPANY, a Delaware corporation (the
"Borrower"); W&P HOLDING CORP.; PULSE ELECTRONICS,
INC.; RFPC HOLDING CORPORATION; TFL, INC.; VAPOR
CORP.; RAILROAD FRICTION PRODUCTS CORPORATION; the
financial institutions listed on the signature pages
hereto (together with the Swingline Lender (as
defined below), the "Lenders"); THE CHASE MANHATTAN
BANK, as successor to Chemical Bank, as swingline
lender (in such capacity, the "Swingline Lender")
and as agent (in such capacity, the "Administrative
Agent") and collateral agent (in such capacity, the
"Collateral Agent") for the Lenders; THE CHASE
MANHATTAN BANK DELAWARE, as successor to Chemical
Bank Delaware, as issuing bank (in such capacity,
the "Issuing Bank"); and THE BANK OF NEW YORK
("BNY") as documentation agent (in such capacity the
"Documentation Agent") for the Lenders.
A. The parties hereto have agreed, subject to the terms and
conditions hereof, to increase the Commitments and make new advances under, and
make other amendments to and waivers of, the Credit Agreement, dated as of
January 31, 1995, amended and restated as of February 15, 1995, amended and
restated as of June 9, 1995, and amended and restated as of September 19, 1996
(the "Credit Agreement"), among the Borrower; the financial institutions party
thereto; the Swingline Lender; the Administrative Agent; the Collateral Agent;
the Issuing Bank; and the Documentation Agent; by amending the Credit Agreement
as set forth herein.
B. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. Amendment of Credit Agreement. (a) The Preamble of
the Credit Agreement is hereby amended by deleting the amount "$125,000,000"
appearing in the seventh line of the first paragraph thereof and substituting
therefor the amount "$140,000,000".
(b) Section 1.01 of the Credit Agreement is hereby amended by
adding, in proper alphabetical order, the following defined term:
"First Amendment Effective Date" shall mean the date the
First Amendment dated as of February 28, 1997 to this Agreement shall
become effective in accordance with its terms.
(c) Section 1.01 of the Credit Agreement is hereby amended by
deleting the defined term "Stock Repurchases" in its entirety and substituting
therefor the following:
"Stock Repurchases" shall mean (a) the repurchase of Common
Stock during the period from November 9, 1995 through November 9,
1996, in the open market or in private negotiated transactions, for an
aggregate purchase price for all such repurchases not in excess of
$11,000,000, (b) the repurchases of Common Stock during the period
from the First Amendment Effective Date through April 30, 1997, from
SIH, for an aggregate purchase price for all such repurchases by the
Borrower not in excess of the lesser of (i) $46,000,000 and (ii) 40%
of the aggregate purchase price for all such purchases by the Borrower
and a group of investors, led by Vestar Capital Partners (the "Vestar
Investment Group"), and (c) the financing of all or a portion of such
repurchases with the proceeds of Revolving Credit Borrowings.
(d) Schedule 2.01 to the Credit Agreement is hereby amended
and restated to read in its entirety as set forth in Schedule 2.01 hereto.
SECTION 2. Waivers. (a) The Required Lenders hereby waive the
provisions of Section 2.12(d) of the Credit Agreement to the extent, but only
to the extent, that such provisions require the prepayment by the Borrower of
the Loans in an aggregate principal amount equal to 50% of Excess Cash Flow
with respect to the fiscal year ended December 31, 1996.
2
(b) The Required Lenders hereby waive the provisions of
Sections 5.11(b) and 5.12 of the Credit Agreement to the extent, but only to
the extent, that such provisions (i) apply to the Vapor Mortgage and (ii) shall
be complied with on or before March 31, 1997.
SECTION 3. Representations and Warranties. The Borrower and
each Guarantor hereby represents and warrants to each Lender, the
Administrative Agent, the Collateral Agent, the Documentation Agent and the
Issuing Bank, on and as of the date hereof and as of the Effective Date, as
follows:
(a) The execution, delivery and performance by each Loan
Party of this Amendment Agreement (i) has been duly authorized by all
requisite corporate and, if required, stockholder action and (ii) will
not (A) violate (I) any provision of law, statute, rule or regulation,
other than any law, statute, rule or regulation, the violation of
which will not result in a Material Adverse Effect, or of the
certificate or articles of incorporation or other constitutive
documents or by-laws of the Borrower or any Guarantor, (II) any order
of any Governmental Authority or (III) any material provision of any
material indenture, agreement or other instrument to which the
Borrower or any Guarantor is a party or by which any of them or any of
their property (including the Mortgaged Properties) or assets is or
may be bound, (B) be in conflict with, result in a breach of,
constitute (along or with notice or lapse of time or both) a default
under or give rise to any right to accelerate any material obligation
on the party of the Borrower or any Guarantor, under any such
indenture, agreement or other instrument or (C) result in the creation
under the Security Documents) upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower or any
Subsidiary.
(b) The Amendment Agreement has been duly executed and
delivered by each Loan Party and constitutes legal, valid and binding
obligations of the Borrower and such Loan Party enforceable against
the Borrower and such Loan Party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws affecting creditors' rights generally
and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity) and
an implied covenant of good faith and fair dealing.
(c) No action, consent or approval of, registration or filing
with or any other action by any Governmental Authority is or will be
required in connection with the execution, delivery and performance of
the Amendment Agreement or the consummation of the transactions
contemplated by the Amendment Agreement, except for such as have been
made or obtained and are in full force and effect.
(d) No Default or Event of Default has occurred and is
continuing. No Default or Event of Default will occur or be continuing
immediately following the Effective Date after giving effect to the
transactions contemplated by the Amendment Agreement.
The representations and warranties contained in this Section 3 shall survive
the making by the Lenders of the Loans under this Amendment Agreement, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Amendment Agreement is outstanding and unpaid and so long as the Commitments
under this Amendment Agreement have not been terminated.
SECTION 4. Effectiveness. This Amendment Agreement shall
become effective only upon satisfaction of the following conditions precedent
on or prior to April 30, 1997 (the first date upon which each such condition
has been satisfied being herein called the "Effective Date"):
(a) The Administrative Agent shall have received duly
executed counterparts of this Amendment Agreement, in each case
bearing the authorized signatures of the Borrower, each of the
Guarantors, the Required Lenders and each Revolving Credit Lender and
Revolving Credit Commitment of which has been increased pursuant to
this Amendment Agreement.
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3
(b) The Administrative Agent shall have received a
certificate of a Financial Officer of the Borrower, dated the
Effective Date, to the effect that the representations and warranties
set forth in Section 3 hereof are true and correct on and as of the
Effective Date.
(c) The Collateral Agent shall have received fully executed
copies of amendments or supplements, as applicable, to each of the
Mortgages (other than the Vapor Mortgage), in form and substance
satisfactory to it, that grant the Collateral Agent a security
interest in all of the real property of the Borrower or any such
Subsidiary that is a Domestic Subsidiary, and each such document
(including each Uniform Commercial Code financing statement) required
by law or reasonably requested by the Administrative Agent to be
filed, registered or recorded in order to create in favor of the
Collateral Agent for the benefit of the Secured Parties a valid, legal
and perfected first-priority security interest in and lien on the
Collateral (subject to any Lien expressly permitted by Section 6.02 of
the Credit Agreement) described in such agreement shall have been
delivered to the Collateral Agent.
(d) The Collateral Agent shall have received an endorsement
to the title policies insuring each Mortgage (other than the Vapor
Mortgage) as a valid first lien on the Mortgaged Property, free of
Liens other than Liens permitted by Section 6.02 of the Credit
Agreement.
(e) The Administrative Agent shall have received evidence
satisfactory to it that the holders of the Senior Unsecured Notes
shall have consented to the Stock Repurchase from SIH and that, after
giving effect to such Stock Repurchase and other stock purchases, no
default or event of default exists with respect to the Senior
Unsecured Notes.
(f) The Administrative Agent shall have received, for its own
account and the account of the Lenders, the fees set forth in the Fee
Letter dated as of the date hereof between the Borrower and the
Administrative Agent.
(g) All legal matters incident to this Agreement, the Amended
Credit Agreement, the borrowings and extensions of credit hereunder
and thereunder shall be satisfactory to the Lenders, to the Issuing
Bank, and to Cravath, Swaine & Moore, counsel for the Administrative
Agent.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 6. Counterparts. This Amendment Agreement may be
executed in any number of counterparts, each of which shall constitute an
original but all of which when taken together shall constitute but one
agreement. Delivery of an executed counterpart of a signature page by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Amendment Agreement.
SECTION 7. Guarantors. Each Guarantor hereby acknowledges and
agrees to (i) be bound by the terms of this Amendment Agreement and (ii) the
amendments effected hereby.
SECTION 8. Security Documents. The Security Documents are
hereby acknowledged and reaffirmed and shall remain operative and in full force
and effect each in accordance with its terms and with the terms of the Credit
Agreement.
SECTION 9. Loan Documents. This Amendment shall be a Loan
Document for all purposes.
SECTION 10. Notices. All notices hereunder shall be given in
accordance with the provisions of Section 9.01 of the Credit Agreement.
SECTION 11. Headings. Section headings used herein are for
convenience of reference only, are not part of this Amendment Agreement and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Amendment Agreement.
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4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their respect duly authorized officers as of
the day and year first above written.
WESTINGHOUSE AIR BRAKE COMPANY,
By: ________________________________
Name:
Title:
W&P HOLDING CORP.,
By: ________________________________
Name:
Title:
PULSE ELECTRONICS, INC.,
By: ________________________________
Name:
Title:
RFPC HOLDING CORPORATION
By: ________________________________
Name:
Title:
TFL, INC.,
By: ________________________________
Name:
Title:
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VAPOR CORP.,
By: ________________________________
Name:
Title:
RAILROAD FRICTION PRODUCTS CORPORATION,
By: ________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent, Collateral Agent and
Swingline Lender,
By: ________________________________
Name:
Title:
THE CHASE MANHATTAN BANK DELAWARE, as Issuing Bank,
By: ________________________________
Name:
Title:
THE BANK OF NEW YORK, individually and as
Documentation Agent,
By: ________________________________
Name:
Title:
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THE BANK OF NOVA SCOTIA,
By: ________________________________
Name:
Title:
THE BANK OF TOKYO/MITSUBISHI TRUST COMPANY,
By: ________________________________
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE,
By: ________________________________
Name:
Title:
COMERICA BANK,
By: ________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
By: ________________________________
Name:
Title:
-6-
7
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
By: ________________________________
Name:
Title:
CREDIT SUISSE,
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
By: ________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
By: ________________________________
Name:
Title:
THE FUJI BANK, LIMITED NEW YORK BRANCH
By: ________________________________
Name:
Title:
-7-
8
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By: ________________________________
Name:
Title:
MANUFACTURERS & TRADERS TRUST COMPANY,
By: ________________________________
Name:
Title:
MELLON BANK, N.A.
By: ________________________________
Name:
Title:
MITSUI LEASING (USA) INC.,
By: ________________________________
Name:
Title:
THE SANWA BANK, LIMITED, NEW YORK BRANCH,
By: ________________________________
Name:
Title:
-8-
9
SOCIETE GENERALE, NEW YORK BRANCH,
By: ________________________________
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH,
By: ________________________________
Name:
Title:
UNION BANK OF CALIFORNIA,
By: ________________________________
Name:
Title:
UNITED STATES NATIONAL BANK OF OREGON,
By: ________________________________
Name:
Title:
-9-
